Pate v. Dumbauld
| Decision Date | 09 April 1923 |
| Parties | JOHN PATE v. B. A. DUMBAULD, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Grant Emerson, Judge.
Reversed and remanded (with directions).
Morrison Pritchett and Haywood Scott for appellant.
(1) Where the petition does not allege any warranty, or contract to cure, that is, to obtain a union of the broken bones, but merely that the appellant, a physician and surgeon, was called to treat respondent's injuries and to set and care for the broken bones and that appellant "negligently and carelessly failed to join or properly fit said broken bones," etc., the issue presented is not whether a "cure" or union of the broken bones was obtained but whether or not the defendant in his treatment of plaintiff's case, exercised that degree of skill and learning ordinarily possessed and exercised by members of his profession, in good standing, practicing in similar localities; and to warrant the submission of such issue to the jury, it was necessary for plaintiff to introduce competent testimony tending to prove that defendant did not exercise, in his treatment of plaintiff's case, that degree of skill and learning. Vanhooser v. Berghoff, 90 Mo. 487; Krinard v. Westerman, 216 S.W. 941, 942; 30 Cyc. 1570; Connelly v. Cone, 224 S.W. (Mo. App.) 1012; Spain v. Burch, 169 Mo.App. 95; Ewing v Good, 78 F. 443; McGraw v. Kerr, 128 P. 870; Rogers v. Kee, 137 N.W. 260; Houghton v. Dickson, 155 P. 128; Zoterell v. Repp, 153 N.W. 692. (2) There is no evidence that the defendant bound himself to effect a cure or to obtain any joining, or union, of the plaintiff's broken bones; and under the law his contract is not a warrant to cure, but only that he possesses and will use reasonable skill, judgment and diligence in performing the service, such as is possessed and employed by members of his profession. Vanhooser v. Berghoff, 90 Mo. 487. (3) The question in a malpractice case as to whether or not the physician, in his treatment, exercised that degree of skill and learning ordinarily possessed and exercised by members of his profession, in good standing, practising in similar localities, is a question of science and must, of necessity, be answered by the testimony of witnesses qualified to speak upon that question. No one but a physician or surgeon can say what degree of skill and learning should have been exercised in the treatment. Therefore the law is well settled that malpractice must be substantiated by the testimony of expert witnesses in order to prevail. Connelly v. Cone, 224 S.W. 1011; Spain v. Burch, 169 Mo.App. 109; Sheldon v. Wright, 67 A. 807; Wilkins v. Brock, 70 A. 575; McGraw v. Kerr, 128 P. 870; Pettigrew v. Lewis, 26 P. 458; Quinn v. Higgins, 24 N.W. 482; Longfellow v. Vernon, 105 N.E. 178; Willard v. Norcross, 85 A. 904; Rogers v. Kee, 137 N.W. 260; Barker v. Lane, 49 A. 963; Adolay v. Miller, 111 N.E. 313; Houghton v. Dickson, 155 P. 130; Miller v. Toles, 150 N.W. 118; Zoterell v. Repp, 153 N.W. 692; Ewing v. Good, 78 F. 442; Wurdman v. Barnes, 66 N.W. 111; Norkett v. Martin, 165 P. 256; Hunter v. Boroughs, 96 S.E. 369; O'Grady v. Cadwalter, 166 N.W. 759; DeBruine v. Voskuil, 169 N.W. 288; Robins v. Nathan, 179 N.Y.S. 281; Paulick v. Nipple, 180 P. 771; Sherer v. Eidenmuller, 187 P. 445; Louden v. Scott, 194 P. 488; Benson v. Dean, 133 N.E. 125; Holsapple v. Schofield, 187 N.W. 682; Heir v. Stiles, 110 N.E. 252; 9 Ency. Evidence (1 Ed.) 846; Rainey v. Smith, 201 P. 1106; Van Epps v. McKinney, 189 N.Y.S. 910. (4) It was for plaintiff to account for the failure of union and the cause of it, and if more than one cause was shown, for one of which defendant is liable, plaintiff must fail if competent evidence does not show that the damages are produced by the cause for which defendant was responsible. Hunter v. Boroughs, 96 S.E. 360; Fuchs v. City of St. Louis, 167 Mo. 635; Breen v. St. Louis Cooperage Co., 50 Mo.App. 202. (5) Plaintiff's expert testimony showing failure of union, due to nature's failure to provide bone growing material necessary to union, shows proximate cause for which defendant is not liable. DeBruine v. Voskuil, 169 N.W. 288; Snearly v. McCarthy, 161 N.W. 108. (6) The doctrine of res ipsa loquitur, that the injury itself, after its treatment by the physician or surgeon, is evidence of negligence or is a physical fact or circumstance from which the jury may infer negligence, is not applicable in a suit for damages, for alleged malpractice, against a physician and surgeon. A bad result, a failure of the broken bones to unite, or any other circumstance showing lack of success, is not evidence of negligence or from which negligence can be inferred. McGrath v. Transfer Co., 197 Mo. 104; Ewing v. Good, 78 F. 442; Spain v. Burch, 169 Mo.App. 94; Connelly v. Cone, 224 S.W. 1012; Miller v. Blackburn, 185 S.W. 864; Baron v. Reading Iron Co., 51 A. 979; Wurdman v. Barnes, 66 N.W. 111; Staloch v. Holmes, 111 N.W. 264, 9 L. R. A. (N. S.) 712; Sheldon v. Wright, 67 A. 807; Pettigrew v. Lewis, 26 P. 458; Neifert v. Hasley, 112 N.W. 705; McGraw v. Kerr, 128 P. 870; Dye v. Corwin, 53 S.E. 147; Delong v. DeLaney, 55 A. 965; Carstense v. Hanselman, 28 N.W. 159; Miller v. Toles, 150 N.W. 118; Sawyer v. Berthold, 134 N.W. 120; Adams v. Junger, 139 N.W. 1096; Hansen v. Harris, 184 N.W. 262; Zoterell v. Repp, 153 N.W. 692; Hamrick v. Shipp, 52 So. 932; Shelton v. Hacelip, 51 So. 937; Hoffman v. Watkins, 138 P. 664; Houghton v. Dixon, 155 P. 128; 30 Cyc. 1584; Cooley on Torts (3 Ed.) sec. 800, p. 1424. (7) The doctrine of res ipsa loquitur cannot be invoked even in a case where it is applicable, where the plaintiff has, by his petition, based his right to recover on specific acts of negligence. McGrath v. Transit Co., 197 Mo. 105; Breeden v. Mining Company, 103 Mo.App. 179.
Pearson & Butts for respondent.
(1) On demurrer all of plaintiff's evidence must be taken as true, and all reasonable inferences drawn in his favor. Hague v. Threadgill, 236 S.W. 895; Vanhooser v. Berghoff, 90 Mo. 487; Wojcirchowski v. Coryell, 217 S.W. 638; Eicholz v. Poe, 217 S.W. 282; Brooks v. Brookes, 186 S.W. 638; Sontag v. Ude, 191 Mo. 617. (2) The judgment and opinions of experts are merely advisory. Their accuracy is not to be assumed by the court, and not binding on the jury. Clingenpeel v. Cin. Tr. Co., 240 S.W. 177; Heyberg v. Henske, 153 Mo. 63; Adams v. Light & Power Co., 237 S.W. 172.
RAILEY, C. Davis and Higbee, CC., concur.
On December 3, 1920, plaintiff filed in the Circuit Court of Jasper County, Missouri, a petition, in which he alleged that on the day of August, 1920, while engaged in his regular employment, he suffered a serious and painful accident, resulting in the breaking of the front or shin bone of one of his legs. It is alleged that defendant was a practicing physician at Webb City, Missouri, where plaintiff sustained said injury and resides; that defendant held himself out as having, and professed to have, that degree of knowledge and skill which is ordinarily used and exercised by those who practice in the treatment of patients and injuries such as plaintiff sustained as aforesaid; that by reason of the premises, plaintiff called defendant to treat his injuries; to set and care for the broken and injured bones of plaintiff's injured limb; that defendant undertook the treatment of plaintiff's limb as aforesaid, attempted to set and bind together the bone and broken ends thereof, and bind them in place, so that they might grow together, become strong, his leg be straight, and of service, in about six weeks.
He avers that defendant wholly failed to use the ordinary knowledge, skill, care or diligence, which it was his duty to exercise in the premises, but so negligently and carelessly conducted himself in and about the setting of said broken bones and the treatment of said injury, that he carelessly and negligently failed to join or properly fit said broken bones, but wholly failed to set them at all, and carelessly and negligently bound up said broken limb, without the setting of same, as it should ordinarily and properly have been set, and carelessly and negligently allowed it to be so improperly bound up for nearly three weeks, and thereupon undertook again to set said limb, and carelessly and negligently failed to join the bones thereof, or properly adjust and set the same, and carelessly bound up in a cast the said injured limb without being or having same properly set; that by reason of the premises, and as a direct result of defendant's negligence, plaintiff was caused to, and did, suffer great pain of mind and body, and will in the future suffer such pain; that he was confined unnecessarily to his bed for many weeks, said injured leg caused to be weak, shortened and deformed, so that he can never use it effectively, as he should have; that he will be permanently impaired in the pursuit of his usual occupation as a laborer, all to his damage in the sum of $ 10,000, etc.
The defendant answered with a general denial.
The evidence on behalf of plaintiff tended to show that both parties to this action resided at Webb City; that respondent was employed as a laborer on the streets of said city; that on August 10, 1920, respondent, then twenty-seven years old was kicked on his right leg by a horse; that the shin bone was broken in two at a point about midway between the knee and the ankle; that it was a compound fracture, with two open wounds (according to the plaintiff, but only one wound according to plaintiff's expert witness, Dr. Slaughter), one on top of the shin and the other on the side, one of the broken bones protruding, at the time of the accident, through the respondent's pants leg; that immediately following the...
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